Legal thoughts, since 2005.

February 12, 2008

It all depends on how you define ‘marriage’

This week's Legal Currents column, which is published in The Daily Record, is entitled "It all depends on how you define ‘marriage’ " The article is set forth in full below and a pdf of the article can be found here.

Last week, in Martinez v. County of Monroe,
2008 NY Slip Op. 00909, the Appellate
Division, Fourth Department held that
valid marriages of same-sex couples performed
in other jurisdictions must be recognized in
New York.

In Martinez, the plaintiff sued her employer, Monroe
Community College (MCC), seeking, in part, a declaration
that MCC was required to recognize her valid Canadian
marriage to her same-sex partner and provide her partner
with spousal health care benefits.

The court noted that New York recognizes all marriages
occurring outside of the state unless the marriage is prohibited
by the “positive” law of New York, or the marriage is contrary
to the prohibitions of natural law, such as those involving
incest or polygamy. The court concluded same-sex marriages
did not fall within either of the exclusions to the rule.

The Fourth Department reached this conclusion in spite of
the recent New York State Court of Appeal’s decision in Hernandez v. Robles, 7 N.Y.3d 338 (2007), in which the court held
the New York Constitution did not compel the recognition of
same-sex marriages occurring in New York. Rather, because
the court in Hernandez indicated the Legislature was free to
enact legislation recognizing same-sex marriages, same-sex
marriages were not necessarily against public policy in our
state, despite MCC’s assertions to the contrary.

From a philosophical standpoint, I agree wholeheartedly
with the Fourth Department, just as I found the dissent’s
argument in Hernandez to be far more palatable than the
majority’s.

In my opinion, marriage, at its most fundamental level, is
about the connection and commitment between two people,
founded on mutual respect and love, a joining
of two souls, entered into by individuals willing to weather the course together, for better or
for worse, for richer or for poorer, in sickness
and in health.

The Hernandez majority, however, reduces
this fine institution to its most base level, and
focuses an inordinate amount of attention on
heterosexual sex and one potential outcome of
that act — a pregnancy.

Although the Fourth Department distinguished the Hernandez decision, I predict it will
be pivotal, should this case reach the Court of
Appeals, although for an entirely different reason than that discussed in Martinez.

Determination of the issues raised in Hernandez necessarily revolve around the definition of the term “marriage.” The concept is not defined in the Domestic Relations Law
and, instead, has been refined through case law.

As explained in Hernandez, “implicitly or explicitly, the
Domestic Relations Law limits marriage to opposite-sex couples.” In New York, in other words, the term “marriage” is
limited to a marriage contract entered into between a man and
a woman. That another jurisdiction chooses to define marriage more broadly than New York may not require our state
to expand its concept of marriage.

By way of example, suppose New York enacted a law
requiring all dogs transported into the state to be quarantined for one month. Cats, however, are not to be subjected
to the requirement.

One day, a woman attempts to enter the state with a dog
and asserts it is not subject to the quarantine requirement
since her state recently passed legislation deeming all four-legged domesticated animals as “cats”; therefore, what
appears to be a “dog” actually is a “cat”.

Under this scenario, New York reasonably could assert
that “a dog is a dog,” despite another jurisdiction’s legislation to the contrary, and the animal entering would be quar-
antined.

Likewise, because New York defines marriage as between
a man and a woman, it is not required to recognize a same-
sex commitment made in another jurisdiction since it does
not fall within New York’s definition of “marriage.” The issue of whether the out-of-state commitment should be recognized is moot, since the commitment is not a “marriage”
under New York law.

In my opinion, the strongest defense to this argument
would be that, because the Legislature chose not to specifically define “marriage” in the Domestic Relations Law or
elsewhere, its intent was to allow the concept of marriage to
change with the times, rather than limiting it to a single,
rigid definition.

Is a “Canadian marriage” the same as a “New York marriage” in this context? For now, the answer is “yes.”

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